Burton v. Artery Co., Inc.

• Decision Date: 06 January 1977
• Docket Number: No. 82,82
• Citation: 367 A.2d 935,279 Md. 94
• Parties: , 20 UCC Rep.Serv. 1207 William G. BURTON v. ARTERY COMPANY, INC., et al.
• Court: Maryland Court of Appeals

Page 94

279 Md. 94

367 A.2d 935, 20 UCC Rep.Serv. 1207

William G. BURTON v. ARTERY COMPANY, INC., et al.

No. 82.

Court of Appeals of Maryland.

Jan. 6, 1977.

Robert H. Haslinger, Silver Spring (Samuel Gordon, Silver Spring, on the brief), for appellant.

Peter R. Hartogensis, Silver Spring (Wheeler & Korpeck, Silver Spring, on the brief), for appellees.

Argued before SINGLEY, SMITH, DIGGES, ELDRIDGE and ORTH, JJ.

SMITH, Judge.

We are here presented with the question of whether the applicable statute of limitations to a contract for the sale and installation of a number of trees and shrubs and the sale and placing of a substantial amount of sod is the three year provision in Maryland Code (1974) § 5-101 Courts and Judicial Proceedings Article as to civil actions generally or the four year statute in Code (1957, 1964 Repl.Vol.) Art. 95B, § 2-725(1) (now, without change, Code (1975) § 2-725(1) Commercial Law Article) relative to actions 'for breach of any contract for sale . . ..' We conclude that this case is properly governed by the latter (Uniform Commercial Code or UCC). Thus, we shall reverse the judgment entered by a trial judge on a motion for summary judgment. We granted certiorari prior to consideration of this matter by the Court of Special Appeals.

Appellant, william G. Burton t/a William Burton Nurseries (Burton), sued Artery Company, Inc., said to be the successor by merger to Artery Communities, Inc. (Artery), and The Artery Organization, Inc., alleged to own all of the stock of Artery Communities, Inc., and to have managed its affairs, claiming nonpayment of a substantial sum due him under a contract dated April 12, 1971. Suit was not filed until April 23, 1974, more than three years but less than four years after the alleged due date under the contract, December 31, 1971.

The contract specified that it was for 'Prospect Walk II,' said to have been a construction project at Columbia in Howard County. In the contract Artery was described as 'Contractor' and Burton, as 'Subcontractor.' It is upon what appears to be a standard form between a building contractor and a subcontractor, with a number of paragraphs eliminated. Schedule A of the contract, appended to it, set forth the scopt of the work as to 'furnish, supply, provide and deliver all labor, supervision, tools, equipment, plant material and perform all the work and services required for the completion of the landscaping and sod at Prospect Walk II, Columbia, Maryland (92 units-13 buildings).' The 'work and services' were to be performed and the materials supplied 'in accordance with the Contractor's applicable plans, specifications furnished by Kenneth P. Soergal and all local governing codes.' Plants and trees were to be guaranteed for a period of one year from the date of installation. Ground cover and flowers were 'to be planted as per plans.' Sod was to meet the standards of the State of Maryland 'and all local governing codes,' with '20% maximum weed content.' The area in which sod was placed was to be 'fine grade(d) to 2/10 foot.' It was to 'be rolled immediately after installation and watered once, as soon as possible, after the rolling procedure.' At the model site covered in the contract Burton was to set out 18 azaleas of one size, 10 azaleas of a somewhat larger size, and 9 rhododendrons of a specified size. He was to install six trees of three specified varieties, provide certain land cover, and place sod. At the remaining sites a total of 235 trees of five different varieties and certain specified sizes were to be placed together with 420 shrubs in addition to the placement of sod. The trial judge determined 'the contract in question (to be) a 'services' contract to which the Statute of Limitations of the Uniform Commercial Code does not apply.'

1 J. Poe Pleading and Practice § 618 (5th ed. Tiffany 1925) states that 'the plea of limitations seems always to have been regarded as almost an odious defense, and has never been favored by the courts.' Poe then refers to 'the universal (Maryland) practice (of) requir(ing) it to be specially pleaded in all actions except ejectment, and to be filed by the rule day,' as now required by Maryland Rules 342 c 1 (d), 342 c 2 (a), and 342 d 2. Because our holding here conceivably can have a bearing on other applications of the UCC to contracts such as this, we dare not rest our decision upon the narrow ground that since limitations are not favored we should opt for the less stringent provision.

I

The term 'goods' is defined in UCC § 2-105(1):

'(1) 'Goods' means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Title 8) and things in action. 'Goods', also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (§ 2-107).' (Emphasis in original.)

The official comment states in pertinent part as to § 2-105:

'Growing crops are included within the definition of goods since they are frequently intened for sale. The concept of 'industrial' growing crops has been abandoned, for under modern practices fruit, perennial hay, nursery stock and the like must be brought within the scope of this Title.' (Emphasis added.)

The sod, trees, and shrubs here involved obviously are goods to be severed from realty. The UCC in § 2-107 states in pertinent part:

'(1) A contract for the sale of timber, minerals or the like or a structure or its materials to be removed from realty is a contract for the sale of goods within this title if they are to be severed by the seller . . ..

'(2) A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto but not described in subsection (1) is a contract for the sale of goods within this title whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.

'(3) . . .'

The admonition in UCC § 1-102(1) is that 'Titles 1 through 10 . . . shall be liberally construed and applied to promote its underlying purposes and policies.' We have heretofore referred to this statement in Harris v. Bower, 266 Md. 579, 588, 295 A.2d 870 (1972), and Plemens v. Didde-Glaser, 244 Md. 556, 562, 224 A.2d 464 (1966).

In Barron v. Edwards, 45 Mich.App. 210, 206 N.W.2d 508 (1973), the court was faced with the question of whether sod was personalty and thus governed by the UCC or realty to which the statute of frauds would be applicable. There was an oral agreement to sell sod. The seller began a suit to restrain the buyer from removing the sod after the state highway department condemned his farm. To the buyer's counterclaim he presented the defense that the contract covered an interest in land and therefore was unenforceable since it was not reduced to writing. The court referred to the official comment to § 2-105 which we have previously quoted. It found support for its ultimate decision in Groth v. Stillson, 20 Mich.App. 704, 174 N.W.2d 596 (1969), where Christmas trees were held to be growing crops, and Azevedo v. Minister, 86 Nev. 576, 581, 471 P.2d 661 (1970), holding hay to be within the meaning of growing crops. The court said:

'Here the sod owed its existence to yearly fertilizing and cultivation by man. It is also significant that plaintiff raised this sod on several prior occasions and apparently treated it as a commercial product. Thus, this sod cannot be considered 'growing grass' as the plaintiff contends. We therefore hold that the sod in the instant case was personalty.' Id. 45 Mich.App. at 214, 206 N.W.2d at 510.

Many years ago Chief Judge McSherry pointed out for this Court in Leonard v. Medford, 85 Md. 666, 671, 37 A. 365, 367 (1897), that '(i)n Maryland, Massachusetts, Maine, Kentucky and Connecticut, sales of growing trees to be presently cut and removed by the vendee are held not to be within the operation of the fourth section of the Statute of Frauds.' He referred to the opinion by Chief Judge Le Grand in Smith v. Bryan, 5 Md. 141 (1853), which he said 'established the law in Maryland to be that a parol sale of growing timber is not within the fourth section of the Statute of Frauds . . ..' The sale in question was determined to be a sale of goods prior to the enactment in Maryland of the Uniform Sales Act.

Sod farms and nurseries are often tremendous commercial enterprises. With the present language of the UCC (including the statement that the sales article should be liberally construed), the official comment, the Michigan decision relative to sod, and the determination by our predecessors that the sale of standing timber was not the sale of an interest in land but one of personalty, we conclude that the sod, trees, and shrubs here involved are goods within the meaning of the UCC.

II

The four year statute of limitations in § 2-725 is applicable to '(a)n action for breach of any contract for sale . . ..' Accordingly, the question arises as to whether an action to recover sums due for sales is '(a)n action for breach of any contract for sale.' The answer is clearly provided in § 2-709 relative to an action for the price. The fact that it has been necessary in some instances for courts to provided that if such amounts of charges that all litigants have not understood this fact. The parties here do not dispute that an action for the price is an action for breach of the contract for sale.

Pennsylvania was one of the first states to adopt the UCC. For that reason its early opinions under the Code have been examined for guidance. The present question was before the court in Gimbel Bros., Inc. v. Cohen, 46 D. & C.2d 747, 91 Montg.Co.L.R. 156 (Pa.1969). In that case...